Lochner: This Day in Labor History: April 17, 1905

This infamous opinion is discussed here as a matter of labor history, one of a continuing series by the author in question. The issue at hand was a maximum hours law for bakeries in New York, sixty hours a week, part of an overall health law.  By closely divided courts in the state and Supreme Court, this aspect of the law was seen as an illegitimate limitation on the liberty of contract, an illegitimate favoritism of certain groups of bakers. Some even today argue that the law burdened small time bakeries, as well as immigrants, and really shouldn't be seen as a "health" law at all, but illegitimate class legislation.

Given the cry of "Lochner!," it should be remembered just what was at stake here.  Though Justice Holmes had a famous dissent (in part to suggest the majority favored a certain economic philosophy; arguably the Constitution does in some sort, including with its anti-slavery provision and certain property related provisions such as the Contract Clause), Justice Harlan wrote the primary dissent for three justices. This meant eight justices did not disagree that liberty included "to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation."  To quote an opinion a few years before.  It is even unclear just how much Holmes himself would disagree.

The debate was over the reasonableness of the regulation. The dissents thought they were reasonable and Harlan, who in certain cases voted to strike down economic regulations, provided some  details on why.  Holmes did so in more general tones. Justice Souter noted nearly one hundred years later that the general idea that the "liberty" protected by the Due Process Clause was open-ended was "unobjectionable" over the years but "striking down as arbitrary various sorts of economic regulations that post-New Deal courts have uniformly thought constitutionally sound" was.  As the discussion linked shows, key here is question of sound economic regulation and the true nature of the unbalanced status of workers/employers.

David Bernstein and others (in a supporting way) and some from the other direction see Lochner as an open-ended protection of "liberty."  But, though a minority of progressives of the day saw that being the problem, over time, the concern was more the understanding of proper economic regulation. As Justice Douglas, who began his rise as a regulator of the economy, late noted, it doesn't mean economic regulations should be given free reign. But, particularly in the Bill of Rights, the limits on economic regulations seemed to him to be much less present. Others also saw personal rights such as free speech or marriage protected in a way "lacking when appeal is made to liberties which derive merely from shifting economic arrangements."

This is a matter as much of history and value judgments based on our experiences than appeals to words like "liberty."  History showed that the free labor principles that helped lead to the abolition of slavery should be applied with an intelligent understanding of the imbalances of the free market system.  So, this was partially about equality and true liberty for those who had a Hobson's choice of taking lousy pay and conditions or starvation.  But, it is also a concern about certain liberties like marriage being more important than being able to sell something.  The "Lochner" problem was not merely some general appeal to "substantive due process" where the Due Process Clause is not merely a procedural protection but protects the rights in "substance" such as free speech or the right to privacy. As noted in the 1970s in respect to liberty over living with family members:

Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court.  That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary -- the boundary of the nuclear family.

The most interesting historical moments tend to be those where there is true complexity on both sides. There is a certain core of Lochner v. N.Y. that holds true -- judicial review of local legislation to protect liberties and guard against special favoritism that is constitutionally illegitimate. The baker here himself brings to mind some Italian pizzeria owner who might wish to stay open long hours or something. But, the value of the "choice" here is debatable and law can block certain "choices" like the "right" to labor for $1 an hour.  The quotes are advisable -- we do not want a totally libertarian system and it would likely have certain coercive qualities.  Some limits are appropriate. 

And, we do trust the "public" marketplace more to regulation than "private" matters.  There continues to be a major debate on how much the courts should have the responsibility (and how to do so) even to regulate the latter field, especially if we are not talking about things explicitly expressed in the Constitution. Certain states also are somewhat more stringent in judicial review of economic regulations. The best approach to regulate the economy in general as a legislative matter also still greatly splits us until today though even the worst policies are not quite the same as those  of 1905.* We do have a ways to go.

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* On can imagine what Justice Peckham would think:

No trade, no occupation, no mode of earning one's living could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employs.

The horrors.